Thompson v. Oklahoma

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA

No. 86-6169 Argued: November 9, 1987 --- Decided: June 29, 1988
JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join.

Petitioner was convicted of first-degree murder and sentenced to death. The principal question presented is whether the execution of that sentence would violate the constitutional prohibition against the infliction of "cruel and unusual punishments" [n1] [p819] because petitioner was only 15 years old at the time of his offense.

I

Because there is no claim that the punishment would be excessive if the crime had been committed by an adult, only a brief statement of facts is necessary. In concert with three older persons, petitioner actively participated in the brutal murder of his former brother-in-law in the early morning hours of January 23, 1983. The evidence disclosed that the victim had been shot twice, and that his throat, chest, and abdomen had been cut. He also had multiple bruises and a broken leg. His body had been chained to a concrete block and thrown into a river, where it remained for almost four weeks. Each of the four participants was tried separately and each was sentenced to death.

Because petitioner was a "child" as a matter of Oklahoma law, [n2] the District Attorney filed a statutory petition, see Okla.Stat., Tit. 10, § 1112(b) (1981), seeking an order finding "that said child is competent and had the mental capacity to know and appreciate the wrongfulness of his [conduct]." App. 4. After a hearing, the trial court concluded

that there are virtually no reasonable prospects for rehabilitation of William Wayne Thompson within the juvenile system and [p820] that William Wayne Thompson should be held accountable for his acts as if he were an adult, and should be certified to stand trial as an adult.

Id. at 8 (emphasis in original).

At the guilt phase of petitioner's trial, the prosecutor introduced three color photographs showing the condition of the victim's body when it was removed from the river. Although the Court of Criminal Appeals held that the use of two of those photographs was error, [n3] it concluded that the error was harmless, because the evidence of petitioner's guilt was so convincing. However, the prosecutor had also used the photographs in his closing argument during the penalty phase. The Court of Criminal Appeals did not consider whether this display was proper.

At the penalty phase of the trial, the prosecutor asked the jury to find two aggravating circumstances: that the murder was especially heinous, atrocious, or cruel; and that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury found the first, but not the second, and fixed petitioner's punishment at death.

The Court of Criminal Appeals affirmed the conviction and sentence, 724 P.2d 780 (1986), citing its earlier opinion in Eddings v. State, 616 P.2d 1159 (1980), rev'd on other grounds, 455 U.S. 104 (1982), for the proposition that, "once a minor is certified to stand trial as an adult, he may also, without violating the Constitution, be punished as an adult." 724 P.2d at 784. We granted certiorari to consider whether a sentence of death is cruel and unusual punishment for a crime committed by a 15-year-old child, as well as whether [p821] photographic evidence that a state court deems erroneously admitted but harmless at the guilt phase nevertheless violates a capital defendant's constitutional rights by virtue of its being considered at the penalty phase. 479 U.S. 1084 (1987).

II

The authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that category. They delegated that task to future generations of judges, who have been guided by the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (Warren, C.J.). [n4] In performing that task, the [p822] Court has reviewed the work product of state legislatures and sentencing juries, [n5] and has carefully considered the reasons why a civilized society may accept or reject the death penalty in certain types of cases. Thus, in confronting the question whether the youth of the defendant -- more specifically, the fact that he was less than 16 years old at the time of his offense -- is a sufficient reason for denying the State the power to sentence him to death, we first review relevant legislative enactments, [n6] then refer to jury determinations, [n7] and [p823] finally explain why these indicators of contemporary standards of decency confirm our judgment that such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty. [n8]

III

Justice Powell has repeatedly reminded us of the importance of

the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office.

Goss v. Lopez, 419 U.S. 565, 590-591 (1975) (dissenting opinion). [n9] Oklahoma recognizes this basic distinction in a number of its statutes. Thus, a minor is not eligible to vote, [n10] to sit on a jury, [n11] to marry without parental consent, [n12] or to purchase alcohol [n13] or cigarettes. [n14] Like all other States, Oklahoma [p824] has developed a juvenile justice system in which most offenders under the age of 18 are not held criminally responsible. Its statutes do provide, however, that a 16- or 17-year-old charged with murder and other serious felonies shall be considered an adult. [n15] Other than the special certification procedure that was used to authorize petitioner's trial in this case "as an adult," apparently there are no Oklahoma statutes, either civil or criminal, that treat a person under 16 years of age as anything but a "child."

The line between childhood and adulthood is drawn in different ways by various States. There is, however, complete or near unanimity among all 50 States and the District of Columbia [n16] in treating a person under 16 as a minor for several important purposes. In no State may a 15-year-old vote or serve on a jury. [n17] Further, in all but one State, a 15-year-old may not drive without parental consent, [n18] and in all but four States, a 15-year-old may not marry without parental consent. [n19] Additionally, in those States that have legislated on the subject, no one under age 16 may purchase pornographic materials (50 States), [n20] and in most States that have some form of legalized gambling, minors are not permitted to participate without parental consent (42 States). [n21] Most relevant, however, is the fact that all States have enacted legislation designating the maximum age for juvenile court jurisdiction at no less than 16. [n22] All of this legislation is consistent [p825] with the experience of mankind, as well as the long history of our law, that the normal 15-year-old is not prepared to assume the full responsibilities of an adult. [n23] [p826]

Most state legislatures have not expressly confronted the question of establishing a minimum age for imposition of the death penalty. [n24] In 14 States, capital punishment is not authorized at all, [n25] and in 19 others, capital punishment is authorized, [p827] but no minimum age is expressly stated in the death penalty statute. [n26] One might argue on the basis of this body of legislation that there is no chronological age at which the [p828] imposition of the death penalty is unconstitutional, and that our current standards of decency would still tolerate the execution of 10-year-old children. [n27] We think it self-evident that such an argument is unacceptable; indeed, no such argument has been advanced in this case. [n28] If, therefore, we accept the [p829] premise that some offenders are simply too young to be put to death, it is reasonable to put this group of statutes to one side because they do not focus on the question of where the chronological age line should be drawn. [n29] When we confine our attention to the 18 States that have expressly established a minimum age in their death penalty statutes, we find that all of them require that the defendant have attained at least the age of 16 at the time of the capital offense. [n30] [p830]

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community. [n31] Thus, the American Bar Association [n32] and the American Law Institute [n33] have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available [p831] for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union. [n34]

IV

The second societal factor the Court has examined in determining the acceptability of capital punishment to the American sensibility is the behavior of juries. In fact, the infrequent and haphazard handing out of death sentences by capital juries was a prime factor underlying our judgment in Furman v. Georgia, 408 U.S. 238 (1972), that the death penalty, as then administered in unguided fashion, was unconstitutional. [n35] [p832]

While it is not known precisely how many persons have been executed during the 20th century for crimes committed under the age of 16, a scholar has recently compiled a table revealing this number to be between 18 and 20. [n36] All of these occurred during the first half of the century, with the last such execution taking place apparently in 1948. [n37] In the following year, this Court observed that this "whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions. . . ." Williams v. New York, 337 U.S. 241, 247 (1949). The road we have traveled during the past four decades -- in which thousands of juries have tried murder cases -- leads to the unambiguous conclusion that the imposition of the death penalty on a 15-year-old offender is now generally abhorrent to the conscience of the community.

Department of Justice statistics indicate that, during the years 1982 through 1986, an average of over 16,000 persons were arrested for willful criminal homicide (murder and non-negligent manslaughter) each year. Of that group of 82,094 persons, 1,393 were sentenced to death. Only 5 of them, including the petitioner in this case, were less than 16 years old [p833] at the time of the offense. [n38] Statistics of this kind can, of course, be interpreted in different ways, [n39] but they do suggest that these five young offenders have received sentences that are "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Furman v. Georgia, 408 U.S. at 309 (Stewart, J., concurring).

V

Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty

on one such as petitioner who committed a heinous murder when he was only 15 years old. Enmund v. Florida, 458 U.S. 782, 797 (1982). [n40] In making that judgment, we first ask whether the juvenile's culpability should be measured by the same standard as that of an adult, and then consider whether the application of the death penalty to this class of offenders "measurably contributes" to the social purposes that are served by the death penalty. Id. at 798. [p834]

It is generally agreed "that punishment should be directly related to the personal culpability of the criminal defendant." California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring). There is also broad agreement on the proposition that adolescents, as a class, are less mature and responsible than adults. We stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases:

But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment" expected of adults. Bellotti v. Baird, 443 U.S. 622, 635 (1979).

Eddings v. Oklahoma, 455 U.S. at 115-116 (footnotes omitted).

To add further emphasis to the special mitigating force of youth, Justice Powell quoted the following passage from the 1978 Report of the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders:

"[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment, because adolescents may have less capacity to control their conduct, and to think in long-range terms, than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."

455 U.S. at 115, n. 11. [p835] Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. [n41] The basis for this conclusion is too obvious to require extended explanation. [n42] Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct, while, at the same time, he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. [n43] [p836]

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.

Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). In Gregg, we concluded that, as "an expression of society's moral outrage at particularly offensive conduct," retribution was not "inconsistent with our respect for the dignity of men." Ibid. [n44] Given the lesser culpability of the juvenile [p837] offender, the teenager's capacity for growth, and society's fiduciary obligations to its children, this conclusion is simply inapplicable to the execution of a 15-year-old offender.

For such a young offender, the deterrence rationale is equally unacceptable. [n45] The Department of Justice statistics indicate that about 98 percent of the arrests for willful homicide involved persons who were over 16 at the time of the offense. [n46] Thus, excluding younger persons from the class that is eligible for the death penalty will not diminish the deterrent value of capital punishment for the vast majority of potential offenders. And even with respect to those under 16 years of age, it is obvious that the potential deterrent value of the death sentence is insignificant for two reasons. The likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent. [p838] And, even if one posits such a cold-blooded calculation by a 15-year-old, it is fanciful to believe that he would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century. In short, we are not persuaded that the imposition of the death penalty for offenses committed by persons under 16 years of age has made, or can be expected to make, any measurable contribution to the goals that capital punishment is intended to achieve. It is, therefore, "nothing more than the purposeless and needless imposition of pain and suffering," Coker v. Georgia, 433 U.S. at 592, and thus an unconstitutional punishment. [n47]

VI

Petitioner's counsel and various amici curiae have asked us to "draw a line" that would prohibit the execution of any person who was under the age of 18 at the time of the offense. Our task today, however, is to decide the case before us; we do so by concluding that the Eighth and Fourteenth Amendments prohibit the execution of a person who was under 16 years of age at the time of his or her offense. [n48]

The judgment of the Court of Criminal Appeals is vacated, and the case is remanded with instructions to enter an appropriate order vacating petitioner's death sentence.

It is so ordered.

JUSTICE KENNEDY took no part in the consideration or decision of this case. [p839]

APPENDICES [*]

APPENDIX A

Right to Vote

The United States Constitution, Amendment 26, requires States to permit 18-year-olds to vote. No State has lowered its voting age below 18. The following chart assembles the various provisions from state constitutions and statutes that provide an 18-year-old voting age.

Ala. [No provisions beyond reference to U.S.Const., Amdt. 26] Alaska Alaska Const., Art. V, § 1

Ariz. Ariz.Rev.Stat.Ann. § 16-121 (Supp.1987) Ark. Ark.Code Ann. § 7-8-401 (1987)

Cal. Cal.Const., Art. 2, § 2

Colo. Colo.Rev.Stat. § 1-2-101 (1980)

Conn. Conn.Const., Art. 9; Conn.Gen.Stat. § 9-12 (Supp.1988)

Del. Del. Code Ann., Tit. 15, § 1701 (1981)

D.C. D.C.Code § 1-1311(b)(1) (1987)

Fla. Fla.Stat. § 97.041 (1987)

Ga. Ga.Code Ann. § 21-2-219 (1987)

Haw. Haw. Rev.Stat. § 11-12 (1985)

Idaho Idaho Code § 34-402 (Supp.1988)

Ill. Ill.Rev.Stat., ch. 46, ¶ 3-l (1987)

Ind. Ind.Code § 3-7-1-1 (Supp.1987)

Iowa Iowa Code § 47.4 (1987)

Kan. Kan. Const., Art. 5, § 1

Ky. Ky. Const. § 145

La. La. Const., Art. 1, § 10; La.Rev.Stat.Ann. § 18:101(A) (West 1979)

Me. Me.Rev.Stat.Ann., Tit. 21A, § 111(2) (Supp.1987-1988)

Md. Md.Ann.Code, Art. 33, § 3-4(b)(2) (1986)

Mass. Mass.Gen.Laws § 51:1 (1986)

Mich. Mich.Comp.Laws § 168.492 (1979)

Minn. Minn.Stat. § 201.014 (1986)

Miss. Miss. Const., Art. 12, § 241 [p840]

Mo. Mo. Const., Art. VIII, § 2

Mont. Mont. Const., Art. IV, § 2; Mont.Code Ann. § 13-1-111 (1987)

Neb. Neb. Const., Art. VI, § 1; Neb.Rev.Stat. § 32-223 (1984)

Nev. Nev.Rev.Stat. § 293.485 (1987)

N. H. N. H. Const., Pt. 1, Art. 11

N.J. N.J. Const., Art. 2, ¶ 3

N.M. [No provisions beyond reference to U.S.Const., Amdt. 26]

N.Y. N.Y. Elec. Law § 5-102 (McKinney 1978)

N.C. N.C.Gen.Stat. § 163-55 (1987)

N.D. N. D. Const., Art. II, § 1

Ohio Ohio Const., Art. V, § 1; Ohio Rev.Code Ann. §§ 3503.01, 3503.011 (1982)

Okla. Okla. Const., Art. 3, § 1

Ore. Ore. Const., Art. II, § 2

Pa. Pa.Stat.Ann., Tit. 25, § 2811 (Purdon Supp.1988-1889)

R.I. R.I.Gen.Laws § 17-1-3 (Supp.1987)

S.C. S.C.Code § 7-5-610 (Supp.1987)

S.D. S.D. Const., Art. VII, § 2; S.D.Codified Laws § 12-3-1 (1982)

Tenn. Tenn.Code Ann. § 2-2-102 (1985)

Tex. Tex.Elec.Code Ann. § 11.002 (Supp.1988)

Utah Utah Code Ann. § 20-1-17 (1984)

Vt. Vt.Stat.Ann., Tit. 17, § 2121 (1982)

Va. Va. Const., Art. II, § 1

Wash. Wash.Const., Art. VI, § 1, Amdt. 63

W.Va. W.Va.Code § 3-1-3 (1987)

Wis. Wis.Const., Art. 3, § 1; Wis.Stat. §§ 6.02, 6.05 (1985-1986)

Wyo. Wyo.Stat. § 22-1-102(k) (Supp.1988)

APPENDIX B

Right to Serve on a Jury

In no State may anyone below the age of 18 serve on a jury. The following chart assembles the various state provisions relating to minimum age for jury service.

Ala. Ala.Code § 12-16-60(a)(1) (1986)

Alaska Alaska Stat.Ann. § 09. 20. 010(a)(3) (Supp.1987) [p841]

Ariz. Ariz.Rev.Stat.Ann. § 21-301(D) (Supp.1987)

Ark. Ark.Code Ann. § 16-31-101 (1987)

Cal. Cal.Civ.Proc.Code Ann. § 198(a)(1) (West Supp.1988)

Colo. Colo.Rev.Stat. § 13-71-109(2)(a) (1973)

Conn. Conn.Gen.Stat. § 51-217 (Supp.1988)

Del. Del. Code Ann., Tit. 10, § 4506(b)(1) (Supp.1986)

D.C. D.C.Code § 11-1906(b)(1)(C) (Supp.1988)

Fla. Fla.Stat. § 40.01 (1987)

Ga. Ga.Code Ann. § 15-12-40 (Supp.1988)

Haw. Haw. Rev.Stat. § 612-4 (1985)

Idaho Idaho Code § 2-209(2)(a) (Supp.1988)

Ill. Ill.Rev.Stat., ch. 78, ¶ 2 (1987)

Ind. Ind.Code § 33-4-5-2 (Supp.1987)

Iowa Iowa Code § 607A.4(1)(a) (1987)

Kan. Kan.Stat.Ann. § 43-156 (1986)

Ky. Ky.Rev.Stat. § 29A.080(2)(a) (1985)

La. La.Code Crim.Proc.Ann., Art. 401(A)(2) (West Supp.1988)

Me. Me.Rev.Stat.Ann., Tit. 14, § 1211 (Supp.1987-1988)

Md. Md.Cts. & Jud.Proc.Code Ann. § 8-104 (1984)

Mass. Mass.Gen.Laws § 234:1 (1986)

Mich. Mich.Comp.Laws § 600.1307a(1)(a) (Supp.1988-1989)

Minn. Minn.Stat. § 593.41, subd. 2(2) (1986)

Miss. Miss.Code Ann. § 13-5-1 (1972)

Mo. Mo.Rev.Stat. § 494.010 (1986)

Mont. Mont.Code Ann. § 3-15-301 (1987)

Neb. Neb.Rev.Stat. § 25-1601 (1985)

Nev. Nev.Rev.Stat. § 6.010 (1987)

N.H. N.H.Rev.Stat.Ann. § 500-A:3 (1983)

N.J. N.J.Stat.Ann. § 9:17B-1 (West Supp.1988)

N.M. N.M.Stat.Ann. § 38-5-1 (1987)

N.Y. N.Y.Jud.Law § 510(2) (McKinney Supp.1988)

N.C. N.C.Gen.Stat. § 9-3 (1986)

N.D. N.D.Cent.Code § 27-09.1-08(2)(b) (Supp.1987)

Ohio Ohio Rev.Code Ann. § 2313.42 (1984)

Okla. Okla.Stat., Tit. 38, § 28 (1981)

Ore. Ore.Rev.Stat. § 10.030(2)(c) (1987)

Pa. Pa.Cons.Stat. § 4521 (1982)

R.I. R.I.Gen.Laws § 9-9-1 (1985)

S.C. S.C.Code § 14-7-130 (1987) [p842]

S.D. S.D.Codified Laws § 16-13-10 (1987)

Tenn. Tenn.Code Ann. § 22-1-101 (1980)

Tex. Tex.Govt.Code Ann. § 62.102 (1988)

Utah Utah Code Ann. § 78-46-7(1)(b) (1987)

Vt. Vt.Stat.Ann. -- Administrative Orders and Rules: Qualification, List, Selection and Summoning of All Jurors -- Rule 25 (1986)

Va. Va.Code § 8.01-337 (Supp.1988)

Wash. Wash.Rev.Code § 2.36.070 (1987)

W.Va. W.Va.Code § 52-1-8(b)(1) (Supp.1988)

Wis. Wis.Stat. § 756.01 (1985-1986)

Wyo. Wyo.Stat. § 1-11-101 (1988)

APPENDIX C

Right to Drive Without Parental Consent

Most States have various provisions regulating driving age, from learner's permits through driver's licenses. In all States but one, 15-year-olds either may not drive or may drive only with parental consent or accompaniment.

Ala. Ala.Code § 32-6-7(1) (1983)

Alaska Alaska Stat.Ann. § 28.15.071 (Supp.1987)

Ariz. Ariz.Rev.Stat.Ann. § 28-413(A)(1) (Supp.1987)

Ark. Ark.Code Ann. § 27-16-604(a)(1) (1987)

Cal. Cal.Veh.Code Ann. § 12507 (West 1987)

Colo. Colo.Rev.Stat. § 42-2-107(1) (1984)

Conn. Conn.Gen.Stat. § 14-36 (1985)

Del. Del.Code Ann., Tit. 21, § 2707 (1985)

D.C. D.C.Code § 40-301 (1981)

Fla. Fla.Stat. § 322.09 (1987)

Ga. Ga.Code Ann. § 40-5-26 (1985)

Haw. Haw. Rev.Stat. § 286-112 (1985)

Idaho Idaho Code § 49-313 (Supp.1987)

Ill. Ill.Rev.Stat., ch. 95 1/2, ¶ 6-103 (1987)

Ind. Ind.Code § 9-1-4-32 (1982)

Iowa Iowa Code § 321.177 (1987)

Kan. Kan.Stat.Ann. § 8-237 (1982)

Ky. Ky.Rev.Stat.Ann. § 186.470 (1980)

La. La.Rev.Stat.Ann. § 32:407 (West Supp.1988)

Me. Me.Rev.Stat.Ann., Tit. 29, § 585 (Supp.1987-1988)

Md. Md. Transp. Code Ann. § 16-103 (1987)

Mass. Mass.Gen.Laws § 90:8 (1986) [p843]

Mich. Mich.Comp.Laws § 257.308 (1979)

Minn. Minn.Stat. § 171.04 (1986)

Miss. Miss.Code Ann. § 63-1-23 (Supp.1987)

Mo. Mo.Rev.Stat. § 302.060 (Supp.1987)

Mont. Mont.Code Ann. § 61-5-105 (1987) (15-year-olds may drive without parental consent if they pass a driver's education course)

Neb. Neb.Rev.Stat. § 60-407 (1984)

Nev. Nev.Rev.Stat. § 483.250 (1987)

N.H. N.H.Rev.Stat.Ann. § 263:17 (Supp.1987)

N.J. N.J.Stat.Ann. § 39:3-10 (West Supp.1988)

N.M. N.M.Stat.Ann. § 66-5-11 (1984)

N.Y. N.Y.Veh. & Traf.Law § 502(2) (McKinney 1986)

N.C. N.C.Gen.Stat. § 20-11 (1983)

N.D. N.D.Cent.Code § 39-06-08 (1987)

Ohio Ohio Rev.Code Ann. § 4507.07 (Supp.1987)\

Okla. Okla.Stat., Tit. 47, § 6-107 (Supp.1987)

Ore. Ore.Rev.Stat. § 807.060 (1987)

Pa. Pa.Cons.Stat., § 1503 (1987)

R.I. R.I.Gen.Laws § 31-10-3 (Supp.1987)

S.C. S.C.Code § 56-1-100 (1976)

S.D. S.D.Codified Laws § 32-12-6 (1984)

Tenn. Tenn.Code Ann. § 55-7-104 (Supp.1987)

Tex. Tex.Rev.Civ.Stat.Ann., Art. 6687b(4) (Vernon Supp.1988)

Utah Utah Code Ann. § 41-2-109 (Supp.1987)

Vt. Vt.Stat.Ann., Tit. 23, § 607 (1987)

Va. Va.Code § 46.1-357 (Supp.1988)

Wash. Wash.Rev.Code § 46.20.031 (1987)

W.Va. W.Va.Code § 17B-2-3 (1986)

Wis. Wis.Stat. § 343.15 (1985-1986)

Wyo. Wyo.Stat. § 31-7-112 (Supp.1988)

APPENDIX D

Right to Marry Without Parental Consent

In all States but four, 15-year-olds may not marry without parental consent.

Ala. Ala.Code § 30-1-5 (1983)

Alaska Alaska Stat.Ann. § 25.05.171 (1983) (judge may permit minor to marry without parental consent, even in the face of parental opposition, in certain circumstances) [p844]

Ariz. Ariz.Rev.Stat.Ann. § 25-102(A) (1976)

Ark. Ark.Code Ann. § 9-11-102 (1987)

Cal. Cal.Civ.Code Ann. § 4101 (West 1983)

Colo. Colo.Rev.Stat. § 14-2-106(1)(a)(1) (1987)

Conn. Conn.Gen.Stat. § 46b-30 (1986)

Del. Del. Code Ann., Tit. 13, § 123 (1981)

D.C. D.C.Code § 30-111 (1981)

Fla. Fla.Stat. § 741.04 (1987)

Ga. Ga.Code Ann. § 19-3-37 (1982)

Haw. Haw.Rev.Stat. § 572-2 (1985)

Idaho Idaho Code § 32-202 (1983)

Ill. Ill.Rev.Stat., ch. 40, ¶ 203(1) (1987)

Ind. Ind.Code § 31-7-1-6 (Supp.1987)

Iowa Iowa Code § 595.2 (1987)

Kan. Kan.Stat.Ann. § 23-106 (1981)

Ky. Ky.Rev.Stat. § 402.210 (1984)

La. La.Civ.Code Ann., Art. 87 (West Supp.1988) (minors not legally prohibited from marrying, even without parental consent, but marriage ceremony required); La.Rev.Stat.Ann. § 9:211 (West Supp.1988) (official may not perform marriage ceremony in which a minor is a party without parental consent; comments to Civ.Code Ann., Art. 87, suggest that such a marriage is valid, but that official may face sanctions)

Me. Me.Rev.Stat.Ann., Tit.19, § 62 (Supp.1987-1988)

Md. Md. Fam.Law Code Ann. § 2-301 (1984) (either party under 16 may marry without parental consent if "the woman to be married . . . is pregnant or has given birth to a child")

Mass. Mass.Gen.Laws § 207:7 (1988)

Mich. Mich.Comp.Laws § 551.103 (1988)

Minn. Minn.Stat. § 517.02 (1986)

Miss. Miss.Code Ann. § 93-1-5(d) (Supp.1987) (female may marry at 15 without parental consent)

Mo. Mo.Rev.Stat. § 451.090 (1986)

Mont. Mont.Code Ann. § 40-1-202 (1987)

Neb. Neb.Rev.Stat. § 42-105 (1984)

Nev. Nev.Rev.Stat. § 122.020 (1987)

N.H. N.H.Rev.Stat.Ann. § 457:5 (1983)

N.J. N.J.Stat.Ann. § 9:17B-1 (West Supp.1988)

N.M. N.M.Stat.Ann. § 40-1-6 (1986) [p845]

N.Y. N.Y.Dom.Rel.Law § 15 (McKinney 1988)

N.C. N.C.Gen.Stat. § 51-2 (Supp.1987)

N.D. N.D.Cent.Code § 14-03-02 (1981)

Ohio Ohio Rev.Code Ann. § 3101.01 (Supp.1987)

Okla. Okla.Stat., Tit. 43, § 3 (1981)

Ore. Ore.Rev.Stat. § 106.060 (1987)

Pa. Pa.Stat.Ann., Tit. 48, § 1-5(c) (Purdon Supp.1988-1989)

R.I. R.I.Gen.Laws § 15-2-11 (1981)

S.C. S.C.Code § 20-1-250 (1985)

S.D. S.D.Codified Laws § 25-1-9 (1984)

Tenn. Tenn.Code Ann. § 36-3-106 (Supp.1987)

Tex. Tex.Fam.Code Ann. § 1.51 (Supp.1987-1988)

Utah Utah Code Ann. § 30-1-9 (1984)

Vt. Vt.Stat.Ann., Tit. 18, § 5142 (1987)

Va. Va.Code § 20-48 (1983)

Wash. Wash.Rev.Code § 26.04.210 (1987)

W.Va. W.Va.Code § 48-1-1 (1986)

Wis. Wis.Stat. § 765.02 (1985-1986)

Wyo. Wyo.Stat. § 20-1-102 (1987)

APPENDIX E

Right to Purchase Pornographic Materials

No minor may purchase pornography in the 50 States that have legislation dealing with obscenity.

Ala. Ala.Code § 13A-12-170(1) (Supp.1987)

Alaska [No legislation]

Ariz. Ariz.Rev.Stat.Ann. § 13-3506 (Supp.1987)

Ark. Ark.Code Ann. §§ 5-68-501, 5-68-502 (1987)

Cal. Cal.Penal Code Ann. § 313.1 (West 1988)

Colo. Colo.Rev.Stat. § 18-7-502 (1986)

Conn. Conn.Gen.Stat. § 53a-196 (1985)

Del. Del. Code Ann., Tit. 11, § 1361(b) (1987)

D.C. D.C.Code § 22-2001(b) (1981)

Fla. Fla.Stat. § 847.012 (1987)

Ga. Ga.Code Ann. § 16-12-103 (1984)

Haw. Haw. Rev.Stat. § 712-1215 (1985)

Idaho Idaho Code § 18-1513 (1987)

Ill. Ill.Rev.Stat., ch. 38, ¶ 11-21 (1987)

Ind. Ind.Code § 35-49-3-3 (Supp.1987)

Iowa Iowa Code § 728.2 (1987) [p846]

Kan. Kan.Stat.Ann. § 21-4301a (Supp.1987)

Ky. Ky.Rev.Stat. § 531-030 (1985)

La. La.Rev.Stat.Ann. § 14:91.11 (West 1986)

Me. Me.Rev.Stat.Ann., Tit. 17, § 2911 (1983 and Supp.1987-1988)

Md. Md.Ann.Code, Art. 27, § 419 (1987)

Mass. Mass.Gen.Laws § 272:28 (1986)

Mich. Mich.Comp.Laws § 750.142 (1979)

Minn. Minn.Stat. § 617.293 (1986)

Miss. Miss.Code Ann. § 97-5-27 (Supp.1987)

Mo. Mo.Rev.Stat. § 573.040 (Supp.1987)

Mont. Mont.Code Ann. § 45-8-201 (1987)

Neb. Neb.Rev.Stat. § 28-808 (1985)

Nev. Nev.Rev.Stat. § 201.265 (1987)

N.H. N.H.Rev.Stat.Ann. § 571-B:2 (1986)

N.J. N.J.Stat.Ann. §§ 2C:34-2, 2C:34-3 (West 1982 and Supp.1988)

N.M. N.M.Stat.Ann. § 30-37-2 (1980)

N.Y. N.Y. Penal Law § 235.21 (McKinney 1980)

N.C. N.C.Gen.Stat. § 19-13 (1983)

N.D. N.D.Cent.Code § 12.1-27.1-03 (1985)

Ohio Ohio Rev.Code Ann. § 2907.31 (1986)

Okla. Okla.Stat., Tit. 21, § 1040.8 (Supp.1987)

Ore. Ore.Rev.Stat. § 167.065 (1987)

Pa. Pa.Cons.Stat. § 5903 (1982)

R.I. R.I.Gen.Laws § 11-31-10 (Supp.1987)

S.C. S.C.Code § 16-15-385 (Supp.1987)

S.D. S.D.Codified Laws § 22-24-28 (1988)

Tenn. Tenn.Code Ann. § 39-6-1132 (1982)

Tex. Tex.Penal Code Ann. § 43.24 (1974)

Utah Utah Code Ann. § 76-10-1206 (1978)

Vt. Vt.Stat.Ann., Tit. 13, § 2802 (1974)

Va. Va.Code § 18.2-391 (1988)

Wash. Wash.Rev.Code § 9.68.060 (1987)

W.Va. W.Va.Code § 61-8A-2 (1984)

Wis. Wis.Stat. § 944.21 (1985-1986)

Wyo. Wyo.Stat. § 6-4-302 (1988) [p847]

APPENDIX F

Right to Participate in Legalized Gambling Without Parental Consent

In 39 of the 48 States in which some form of legalized gambling is permitted, minors are absolutely prohibited from participating in some or all forms of such gambling. In three States, parental consent vitiates such prohibition; in six States, no age restrictions are expressed in the statutory provisions authorizing gambling.

Ala. Ala.Code § 11-65-44 (1985)

Alaska Alaska Stat.Ann. § 43.35.040(a)(1) (1983)

Ariz. Ariz.Rev.Stat.Ann. § 5-112(E) (Supp.1987)

Ark. Ark.Code Ann. § 23-110-405(c) (Supp.1987)

Cal. Cal.Penal Code Ann. § 326.5(e) (West 1988)

Colo. Colo.Rev.Stat. § 24-35-214(1)(c) (1982)

Conn. Conn.Gen.Stat. § 7-186a (Supp.1988)

Del. Del. Code Ann., Tit. 29, § 4810(a) (1983)

D.C. D.C.Code § 2-2534 (1988)

Fla. Fla.Stat. § 849.093(9)(a) (1987)

Ga. Ga.Code Ann. § 16-12-58 (1984)

Haw. Haw. Rev.Stat. § 712-1231 (1985)

Idaho Idaho Code § 67-7415 (Supp.1988)

Ill. Ill.Rev.Stat., ch. 120, ¶ 1102(9) (1988)

Ind. [Gambling not permitted by statute]

Iowa Iowa Code § 233.1(2)(c) (1987)

Kan. Kan.Stat.Ann. § 79-4706(m) (1984)

Ky. [No age restrictions]

La. La.Rev.Stat.Ann. § 14:92(A)(4) (West 1986)

Me. Me.Rev.Stat.Ann., Tit. 17, § 319 (1983)

Md. [No age restrictions]

Mass. Mass.Gen.Laws § 128A:10 (1986)

Mich. Mich.Comp.Laws Ann. § 432.110a(a) (Supp.1988-1989)

Minn. [No age restrictions]

Miss. Miss.Code Ann. § 97-33-21 (1972)

Mo. Mo.Rev.Stat. § 313.280 (1986)

Mont. Mont.Code Ann. § 23-5-506 (1987)

Neb. Neb.Rev.Stat. § 9-250 (Supp.1986)

Nev. Nev.Rev.Stat. § 463.350 (1987)

N.H. N.H.Rev.Stat.Ann. §§ 287-A:4, 287-E:7(III), and 287-E:21(V) (1987) [p848]

N.J. N.J.Stat.Ann. § 9:17B-1 (West Supp.1988)

N.M. [No age restrictions]

N.Y. N.Y. Tax Law § 1610 (McKinney 1987)

N.C. [No age restrictions]

N.D. N.D.Cent.Code § 53-06.1-07.1 (Supp.1987)

Ohio Ohio Rev.Code Ann. § 3770.07 (Supp.1987)

Okla. Okla.Stat., Tit. 21, § 995.13 (1981) (permitted with parental consent)

Ore. Ore.Rev.Stat. § 163.575(1)(c) (1987)

Pa. Pa.Stat.Ann., Tit. 10, § 305 (Purdon Supp.1988-1989) (permitted with parental consent)

R.I. R.I.Gen.Laws § 11-19-32(1) (Supp.1987)

S.C. [Gambling not permitted by statute]

S.D. S.D.Codified Laws § 42-7A-32 (Supp.1988)

Tenn. Tenn.Code Ann. § 39-6-609(f) (Supp.1987)

Tex. Tex.Rev.Civ.Stat.Ann., Art. 179d, § 17 (Vernon Supp.1987-1988) (permitted with parental consent)

Utah [Gambling not permitted by statute]

Vt. Vt.Stat.Ann., Tit. 31, § 674(J) (1986)

Va. [No age restrictions]

Wash. Wash.Rev.Code § 67.70.120 (1987)

W.Va. W.Va.Code § 19-23-9(e) (Supp.1988)

Wis. Wis.Stat. § 163.51(13) (1985-1986)

Wyo. Wyo.Stat. § 11-25-109(c) (Supp.1988)

1. The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

U.S.Const., Amdt. 8. This proscription must be observed by the States as well as the Federal Government. See, e.g., Robinson v. California, 370 U.S. 660 (1962).

2. Oklahoma Stat., Tit. 10, § 1101(1) (Supp.1987) provides:

"Child" means any person under eighteen (18) years of age, except for any person sixteen (16) or seventeen (17) years of age who is charged with murder, kidnapping for purposes of extortion, robbery with a dangerous weapon, rape in the first degree, use of a firearm or other offensive weapon while committing a felony, arson in the first degree, burglary with explosives, shooting with intent to kill, manslaughter in the first degree, or nonconsensual sodomy.

3.

The other two color photographs . . . were gruesome. Admitting them into evidence served no purpose other than to inflame the jury. We do not understand why an experienced prosecutor would risk reversal of the whole case by introducing such ghastly, color photographs with so little probative value. We fail to see how they could possibly assist the jury in the determination of defendant's guilt. The trial court's admission of these two photographs was error.

724 P.2d 780, 782-783 (Okl.Crim.App.1986).

4. That Eighth Amendment jurisprudence must reflect "evolving standards of decency" was settled early this century in the case of Weems v. United States, 217 U.S. 349 (1910). The Court held that a sentence of 15 years of hard, enchained labor, plus deprivation of various civil rights and perpetual state surveillance, constituted "cruel and unusual punishment" under the Bill of Rights of the Philippines (then under United States control). Premising its opinion on the synonymity of the Philippine and United States "cruel and unusual punishment" clauses, the Court wrote:

Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gives it birth.

* * * *

The [cruel and unusual punishment clause], in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.

Id. at 373-374, 378. See also Ollman v. Evans, 242 U.S.App.D.C. 301, 326-327, 750 F.2d 970, 995-996 (1984) (en banc) (Bork, J., concurring):

Judges given stewardship of a constitutional provision . . . whose core is known, but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. There would be little need for judges -- and certainly no office for a philosophy of judging -- if the boundaries of every constitutional provision were self-evident. They are not. . . . [I]t is the task of the judge in this generation to discern how the framers' values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their application. . . .

* * * *

We must never hesitate to apply old values to new circumstances. . . . The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty.

5. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (plurality opinion) (Stewart, Powell, and STEVENS, JJ.); Coker v. Georgia, 433 U.S. 584, 593-597 (1977) (plurality opinion) (WHITE, J.); Enmund v. Florida, 458 U.S. 782, 789-796 (1982); id. at 814 (legislative and jury statistics important in Eighth Amendment adjudication) (O'CONNOR, J., dissenting).

6. See Furman v. Georgia, 408 U.S. 238, 277-279 (1972) (Court must look to objective signs of how today's society views a particular punishment) (BRENNAN, J., concurring); Enmund v. Florida, 458 U.S. at 789-793.

7. Our capital punishment jurisprudence has consistently recognized that contemporary standards, as reflected by the actions of legislatures and juries, provide an important measure of whether the death penalty is "cruel and unusual." Part of the rationale for this index of constitutional value lies in the very language of the construed clause: whether an action is "unusual" depends, in common usage, upon the frequency of its occurrence or the magnitude of its acceptance.

The focus on the acceptability and regularity of the death penalty's imposition in certain kinds of cases -- that is, whether imposing the sanction in such cases comports with contemporary standards of decency as reflected by legislative enactments and jury sentences -- is connected to the insistence that statutes permitting its imposition channel the sentencing process toward nonarbitrary results. For both a statutory scheme that fails to guide jury discretion in a meaningful way, and a pattern of legislative enactments or jury sentences revealing a lack of interest on the part of the public in sentencing certain people to death, indicate that contemporary morality is not really ready to permit the regular imposition of the harshest of sanctions in such cases.

8. Thus, in explaining our conclusion that the death penalty may not be imposed for the crime of raping an adult woman, JUSTICE WHITE stated:

[T]he Constitution contemplates that, in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.

Coker v. Georgia, 433 U.S. at 597.

9. See also New Jersey v. T.L.O., 469 U.S. 325, 350, n. 2 (1985) (Powell, J., concurring); Burger v. Kemp, 483 U.S. 776 (1987) (Powell, J., dissenting).

10. Okla.Const., Art. 3, § 1. Okla.Stat., Tit. 38, § 28 (1981) and Okla. Const., Art. 3, § 1 . Okla. Stat., Tit. 43, § 3 (1981).

11. Okla.Stat., Tit. 38, § 28 (1981), and Okla.Const., Art. 3, § 1.

12. Okla.Stat., Tit. 43, § 3 (1981).

13. Okla.Stat., Tit. 21, § 1215 (1981).

14. Okla.Stat., Tit. 21, § 1241 (Supp.1987). Additionally, minors may not patronize bingo parlors or pool halls unless accompanied by an adult, Okla.Stat., Tit. 21, §§ 995.13, 1103 (1981), pawn property, Okla.Stat., Tit. 59, § 1511(C)(1) (1981), consent to services by health professionals for most medical care, unless married or otherwise emancipated, Okla.Stat., Tit. 63, § 2602 (1981), § 2601(a) (Supp.1987), or operate or work at a shooting gallery, Okla.Stat., Tit. 63, § 703 (1984), and may disaffirm any contract, except for "necessaries," Okla.Stat., Tit. 15, §§ 19, 20 (1981).

15. See n. 2, supra; cf. Craig v. Boren, 429 U.S. 190, 197 (1976).

16. Henceforth, the opinion will refer to the 50 States and the District of Columbia as "States," for sake of simplicity.

17. See Appendices A and B, infra. See Appendix C, infra.

18. See Appendix C,infra.

19. See Appendix D, infra.

20. See Appendix E, infra.

21. See Appendix F, infra.

22. S. Davis, Rights of Juveniles: The Juvenile Justice System, Appendix B (1987). Thus, every State has adopted "a rebuttable presumption" that a person under 16 "is not mature and responsible enough to be punished as an adult," no matter how minor the offense may be. Post at 859 (dissenting opinion).

23. The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain "rights," to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind. See Garvey, Freedom and Choice in Constitutional Law, 94 Harv.L.Rev. 1756 (1981). It is in this way that paternalism bears a beneficent face, paternalism in the sense of a caring, nurturing parent making decisions on behalf of a child who is not quite ready to take on the fully rational and considered task of shaping his or her own life. The assemblage of statutes in the text above, from both Oklahoma and other States, reflects this basic assumption that our society makes about children as a class; we assume that they do not yet act as adults do, and thus we act in their interest by restricting certain choices that we feel they are not yet ready to make with full benefit of the costs and benefits attending such decisions. It would be ironic if these assumptions that we so readily make about children as a class -- about their inherent difference from adults in their capacity as agents, as choosers, as shapers of their own lives -- were suddenly unavailable in determining whether it is cruel and unusual to treat children the same as adults for purposes of inflicting capital punishment. Thus, informing the judgment of the Court today is the virtue of consistency, for the very assumptions we make about our children when we legislate on their behalf tells us that it is likely cruel, and certainly unusual, to impose on a child a punishment that takes as its predicate the existence of a fully rational, choosing agent, who may be deterred by the harshest of sanctions and toward whom society may legitimately take a retributive stance. As we have observed,

Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae.

Schall v. Martin, 467 U.S. 253 (1984).

24. Almost every State, and the Federal Government, have set a minimum age at which juveniles accused of committing serious crimes can be waived from juvenile court into criminal court. See Davis, supra, n. 22; 18 U.S.C. § 5032 (1982 ed., Supp IV). The dissent's focus on the presence of these waiver ages in jurisdictions that retain the death penalty, but that have not expressly set a minimum age for the death sentence, see post at 867-868, distorts what is truly at issue in this case. Consider the following example: the States of Michigan, Oregon, and Virginia have all determined that a 15-year-old may be waived from juvenile to criminal court when charged with first-degree murder. See Mich.Comp.Laws § 712A.4(1) (1979); Ore.Rev.Stat. §§ 419.533(1)(a), (1)(b), (3) (1987); Va.Code § 16.1-269(A) (1988). However, in Michigan, that 15-year-old may not be executed -- because the State has abolished the death penalty -- and, in Oregon, that 15-year-old may not be executed -- because the State has expressly set a minimum age of 18 for executions -- but, in Virginia, that 15-year-old may be executed -- because the State has a death penalty and has not expressly addressed the issue of minimum age for execution. That these three States have all set a 15-year-old waiver floor for first-degree murder tells us that the States consider 15-year-olds to be old enough to be tried in criminal court for serious crimes (or too old to be dealt with effectively in juvenile court), but tells us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders. As a matter of fact, many States in the Union have waiver ages below 16, including many of the States that have either abolished the death penalty or that have set an express minimum age for the death penalty at 16 or higher. See Davis, supra, n. 22. In sum, we believe that the more appropriate measures for determining how the States view the issue of minimum age for the death penalty are those discussed in the text and in n. 29infra.

25. Alaska (Territory of Alaska, Session Laws, 1957, ch. 132, 23d Sess., an Act abolishing the death penalty for the commission of any crime; see Alaska Stat.Ann. § 12.55.015 (1987), "Authorized sentences" do not include the death penalty; § 12.55.125, "Sentences of imprisonment for felonies" do not include the death penalty); District of Columbia (United States v. Lee, 160 U.S.App.D.C. 118, 122-123, 489 F.2d 1242, 1246-1247 (1973), death penalty unconstitutional in light of Furman v. Georgia, 408 U.S. 238"]408 U.S. 238 (1972); see D.C.Code § 22-2404 (1981), penalty for first-degree murder does not include death); Hawaii (Territory of Hawaii, Regular Session Laws, 1957, Act 282, 28th Leg., an Act relating to the abolishment of capital punishment; see Hawaii Rev.Stat., § 706-656 (Supp.1987), sentence for offense of murder does not include death penalty); Iowa (1965 Iowa Acts, ch. 435, Death Penalty Abolished; see Iowa Code § 902.1 (1987), penalties for Class A felonies do not include death); Kansas (State v. Randol, 212 Kan. 461, 471, 513 P.2d 248, 256 (1973), death penalty unconstitutional after Furman v. Georgia, supra; death penalty still on books, Kan.Stat.Ann. §§ 22-4001 - 22-4014 (1981); but see § 21-3401, first-degree murder is a Class A felony, and § 21-4501(a), sentence for a Class A felony does not include death penalty); Maine (1887 Maine Acts, ch. 133, an Act to abolish the death penalty; see Me.Rev.Stat.Ann., Tit. 17-A, §§ 1251, 1152 (1983 and Supp.1987-1988), authorized sentences for murder do not include death penalty); Massachusetts (Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984), death penalty statute violates state constitution; death penalty law still on books, Mass.Gen.Laws §§ 279:57-279:71 (1986)); Michigan (Const., Art. 4, § 46, "No law shall be enacted providing for the penalty of death"; see Mich.Comp.Laws § 750.316 (Supp.1988-1989), no death penalty provided for first-degree murder); Minnesota (1911 Minn.Laws, ch. 387, providing for life imprisonment and not death as sentence; see Minn.Stat. § 609.10 (1986), sentences available do not include death penalty, and § 609.185, sentence for first-degree murder is life imprisonment); New York (People v. Smith, 63 N.Y.2d 41, 70-79, 468 N.E.2d 879, 893-899 (1984), mandatory death penalty for first-degree murder while serving a sentence of life imprisonment unconstitutional after 408 U.S. 238 (1972); see D.C.Code § 22-2404 (1981), penalty for first-degree murder does not include death); Hawaii (Territory of Hawaii, Regular Session Laws, 1957, Act 282, 28th Leg., an Act relating to the abolishment of capital punishment; see Hawaii Rev.Stat., § 706-656 (Supp.1987), sentence for offense of murder does not include death penalty); Iowa (1965 Iowa Acts, ch. 435, Death Penalty Abolished; see Iowa Code § 902.1 (1987), penalties for Class A felonies do not include death); Kansas (State v. Randol, 212 Kan. 461, 471, 513 P.2d 248, 256 (1973), death penalty unconstitutional after Furman v. Georgia, supra; death penalty still on books, Kan.Stat.Ann. §§ 22-4001 - 22-4014 (1981); but see § 21-3401, first-degree murder is a Class A felony, and § 21-4501(a), sentence for a Class A felony does not include death penalty); Maine (1887 Maine Acts, ch. 133, an Act to abolish the death penalty; see Me.Rev.Stat.Ann., Tit. 17-A, §§ 1251, 1152 (1983 and Supp.1987-1988), authorized sentences for murder do not include death penalty); Massachusetts (Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984), death penalty statute violates state constitution; death penalty law still on books, Mass.Gen.Laws §§ 279:57-279:71 (1986)); Michigan (Const., Art. 4, § 46, "No law shall be enacted providing for the penalty of death"; see Mich.Comp.Laws § 750.316 (Supp.1988-1989), no death penalty provided for first-degree murder); Minnesota (1911 Minn.Laws, ch. 387, providing for life imprisonment and not death as sentence; see Minn.Stat. § 609.10 (1986), sentences available do not include death penalty, and § 609.185, sentence for first-degree murder is life imprisonment); New York (People v. Smith, 63 N.Y.2d 41, 70-79, 468 N.E.2d 879, 893-899 (1984), mandatory death penalty for first-degree murder while serving a sentence of life imprisonment unconstitutional after Woodson v. North Carolina, 428 U.S. 280 (1976), thus invalidating remainder of New York's death penalty statute; death penalty still on books, N.Y. Penal Law § 60.06 (McKinney 1987), providing for death penalty for first-degree murder); North Dakota (N.D.Cent.Code, ch. 12-50 (1985), "The Death Sentence and Execution Thereof," repealed by 1973 N. D. Laws, ch. 116, § 41, effective July 1, 1975); Rhode Island (State v. Cline, 121 R. I. 299, 397 A.2d 1309 (1979), mandatory death penalty for any prisoner unconstitutional after Woodson v. North Carolina, supra; see R.I.Gen.Laws § 11-23-2 (Supp.1987), penalties for murder do not include death); West Virginia (W.Va.Code § 61-11-2 (1984), "Capital punishment abolished"); Wisconsin (1853 Wis.Laws, ch. 103, "An act to provide for the punishment of murder in the first degree, and to abolish the penalty of death"; see Wis.Stat. §§ 939.50(3)(a), 940.01 (1985-1986), first-degree murder is a Class A felony, and the penalty for such felonies is life imprisonment).

26. Alabama (see Ala.Code §§ 13A-5-39 - 13A-5-59, 13A-6-2 (1982 and Supp.1987)); Arizona (see Ariz.Rev.Stat.Ann. §§ 13-703 - 13-706, 13-1105 (1978 and Supp.1987)); Arkansas (see Ark.Code Ann. §§ 5-4-104(b), 5-4-601 - 5-4-617, 5-10-101, 5-51-201 (1987 and Supp.1987)); Delaware (see Del.Code Ann., Tit. 11, §§ 636, 4209 (1987)); Florida (see Fla.Stat. §§ 775.082, 782.04(1), 921.141 (1987)); Idaho (see Idaho Code §§ 18-4001 - 18-4004, 19-2515 (1987)); Louisiana (see La.Rev.Stat.Ann. §§ 14:30(C), 14:113 (West 1986); La.Code Crim.Proc.Ann., Art. 905 et seq. (West 1984 and Supp.1988)); Mississippi (see Miss.Code Ann. §§ 97-3-21, 97-7-67, 99-19-101 - 99-19-107 (Supp.1987)); Missouri (see Mo.Rev.Stat. §§ 565.020, 565.030-565.040 (1986)); Montana (see Mont.Code Ann. §§ 45-5-102, 4618-301 - 46-18-310 (1987)); Oklahoma (see Okla.Stat., Tit. 21, §§ 701.10-701.15 (1981 and Supp.1987)); Pennsylvania (see Pa.Cons.Stat., Tit. 18, § 1102(a), Tit. 42, § 9711 (1982 and Supp.1987)); South Carolina (see S.C.Code §§ 16-3-10, 16-3-20 (1985 and Supp.1987)); South Dakota (see S.D.Codified Laws §§ 22-16-4, 22-16-12, 23A-27A-1 - 23A-27A-41 (1988)); Utah (see Utah Code Ann. §§ 76-3-206, 76-3-207 (1978 and Supp.1987)); Vermont (see Vt.Stat.Ann., Tit. 13, §§ 2303, 2403, 7101-7107 (1974 and Supp.1987)); Virginia (see Va.Code §§ 18.2-31 (1988), 19.2264.2 - 19.2-264.5 (1983 and Supp.1987)); Washington (see Wash.Rev.Code §§ 10.95.010 - 10.95.900 (1987)); Wyoming (see Wyo.Stat. §§ 6-2101 - 6-2-103 (1988)).

27. It is reported that a 10-year-old black child was hanged in Louisiana in 1855, and a Cherokee Indian child of the same age was hanged in Arkansas in 1885. See Streib, Death Penalty for Children: The American Experience With Capital Punishment for Crimes Committed While Under Age Eighteen, 36 Okla.L.Rev. 613, 619-620 (1983).

28. See Tr. of Oral Arg. 31 (respondent suggests a minimum age of 14); post at 872 (dissent agrees that some line exists); post at 848 (concurrence similarly agrees).

29. One might argue, of course, that petitioner's execution "could theoretically be imposed" in 19 States, see post at 864 (dissenting opinion), just as execution was permissible above the age of 7 in Blackstone's time. Ibid. This argument would, though, first have to acknowledge that the execution would be impermissible in 32 States. Additionally, 2 of the 19 States that retain a death penalty without setting a minimum age simply do not sentence people to death any more. Neither South Dakota nor Vermont has imposed a death sentence since our landmark decision in Furman v. Georgia, 408 U.S. 238 (1972). See Greenberg, Capital Punishment as a System, 91 Yale L.J. 908, 929-936 (1982); NAACP Legal Defense and Educational Fund, Inc., Death Row, U.S.A. (1980-1987). (Vermont is frequently counted as a 15th State without a death penalty, since its capital punishment scheme fails to guide jury discretion, see Vt.Stat.Ann., Tit. 13, §§ 7101-7107 (1974), and has not been amended since our decision in Furman v. Georgia, supra, holding similar statutes unconstitutional. South Dakota's statute does provide for jury consideration of aggravating and mitigating factors. See S.D.Codified Laws, ch. 23A-27A (1988)). Thus, if one were to shift the focus from those States that have expressly dealt with the issue of minimum age and toward a general comparison of States whose statutes, facially, would and would not permit petitioner's execution, one would have to acknowledge a 2:1 ratio of States in which it is not even "theoretically" possible that Thompson's execution could occur.

30. California (Cal.Penal Code Ann. § 190.5 (West 1988)) (age 18); Colorado (Colo.Rev.Stat. § 16-11-103(1)(a) (1986)) (age 18); Connecticut (Conn.Gen.Stat. § 53a-46a(g)(1) (1985)) (age 18); Georgia (Ga.Code Ann. § 17-9-3 (1982)) (age 17); Illinois (Ill.Rev.Stat., ch. 38, ¶ 9-1(b) (1987)) (age 18); Indiana (Ind.Code § 35-50-2-3 (Supp.1987)) (age 16); Kentucky (Ky.Rev.Stat. § 640.040(1) (1987)) (age 16); Maryland (Md.Ann.Code, Art. 27, § 412(f) (1988)) (age 18); Nebraska (Neb.Rev.Stat. § 28-105.01 (1985)) (age 18); Nevada (Nev.Rev.Stat. § 176.025 (1987)) (age 16); New Hampshire (N.H.Rev.Stat.Ann. § 630:5(XIII) (Supp.1987) (prohibiting execution of one who was a minor at time of crime) (§ 21-B:1 indicates that age 18 is age of majority, while § 630:1(V) provides that no one under age 17 shall be held culpable of a capital offense); New Jersey (N.J.Stat.Ann. §§ 2A:4A-22(a) (1987), 2C-11-3(g) (West Supp.1988)) (age 18); New Mexico (N.M.Stat.Ann. §§ 28-6-1(A), 31-18-14(A) (1987)) (age 18); North Carolina (N.C.Gen.Stat. § 14-17 (Supp.1987)) (age 17, except death penalty still valid for anyone who commits first-degree murder while serving prison sentence for prior murder or while on escape from such sentence); Ohio (Ohio Rev.Code Ann. § 2929.02(A) (1984)) (age 18); Oregon (Ore.Rev.Stat. §§ 161.620, 419.476(1) (1987)) (age 18); Tennessee (Tenn.Code Ann. §§ 37-1-102(3), (4), 37-1-103, 37-1-134(a)(1) (1984 and Supp.1987)) (age 18); Texas (Tex.Penal Code Ann. § 8.07(d) (Supp.1987-1988)) (age 17).

In addition, the Senate recently passed a bill authorizing the death penalty for certain drug-related killings, with the caveat that "[a] sentence of death shall not be carried out upon a person who is under 18 years of age at the time the crime was committed." S. 2455, 100th Cong., 2d Sess.; 134 Cong.Rec. S7580 (June 10, 1988).

31. We have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual. See Trop v. Dulles, 356 U.S. 86, 102, and n. 35 (1958); Coker v. Georgia, 433 U.S. at 596, n. 10; Enmund v. Florida, 458 U.S. at 796-797, n. 22.

32.

Be It Resolved, That the American Bar Association opposes, in principle, the imposition of capital punishment upon any person for any offense committed while under the age of eighteen (18).

American Bar Association, Summary of Action Taken by the House of Delegates 17 (1983 Annual Meeting).

33. "[C]ivilized societies will not tolerate the spectacle of execution of children. . . ." American Law Institute, Model Penal Code § 210.6, commentary, p. 133 (Official Draft and Revised Comments 1980).

34. All information regarding foreign death penalty laws is drawn from App. to Brief for Amnesty International as Amicus Curiae A-l - A-9, and from Death Penalty in Various Countries, prepared by members of the staff of the Law Library of the Library of Congress, January 22, 1988 (available in Clerk of Court's case file). See also Children and Young Persons Act, 1933, 23 Geo. 5, ch. 12, § 53(1), as amended by the Murder (Abolition of Death Penalty) Act 1965, §§ 1(5), 4 (abolishing death penalty for juvenile offenders in United Kingdom), reprinted in 6 Halsbury's Statutes 55-56 (4th ed.1985); Crimes Act, 1961, § 16, in 1 Reprinted Statutes of New Zealand 650-651 (1979). In addition, three major human rights treaties explicitly prohibit juvenile death penalties. Article 6(5) of the International Covenant on Civil and Political Rights, Annex to G. A. Res. 2200, 21 U.N.GAOR Res.Supp. (No. 16) 53, U.N.Doc. A/6316 (1966) (signed but not ratified by the United States), reprinted in 6 International Legal Material 368, 370 (1967); Article 4(5) of the American Convention on Human Rights, O.A.S. Official Records, OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 2 (1970) (signed but not ratified by the United States), reprinted in 9 International Legal Material 673, 676 (1970); Article 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 3560, T.I.A.S. No. 3365 (ratified by the United States).

35. See Furman v. Georgia, 408 U.S. at 249 (rarity of a sentence leads to an inference of its arbitrary imposition) (Douglas, J., concurring); id. at 274-277 (Eighth Amendment prevents arbitrary death sentences; rarity of death sentences results in an inference of arbitrariness) (BRENNAN, J., concurring); id. at 299-300 (BRENNAN, J., concurring); id. at 312 (rarity of imposition indicates arbitrariness; "A penalty with such negligible returns to the State would be patently excessive," and therefore violate the Eighth Amendment) (WHITE, J., concurring); id. at 314 (WHITE, J., concurring); see also Enmund v. Florida, 458 U.S. at 794-796 (few juries sentence defendants to death who neither killed nor intended to kill).

36. V. Streib, Death Penalty for Juveniles 190-208 (1987) (compiling information regarding all executions in this country from 1620 through 1986 for crimes committed while under age 18; uncertainty between 18 and 20 because of two persons executed who may have been either 15 or 16 at time of crime).

37. Professor Streib reports that the last execution of a person for a crime committed under age 16 was on January 9, 1948, when Louisiana executed Irvin Mattio, 15 at the time of his crime. Id. at 197.

38. See U.S. Dept. of Justice, Uniform Crime Reports: Crime in the United States 174 (1986); id. at 174 (1985); id. at 172 (1984); id. at 179 (1983); id. at 176 (1982); U.S. Dept. of Justice, Bureau of Justice Statistics Bulletin: Capital Punishment, 1986, p. 4 (1987); id. Capital Punishment 1985, p. 5 (1986); id. Capital Punishment 1984, p. 6 (1985); Streib, supra, n. 36, at 168-169.

39. For example, one might observe that, of the 80,233 people arrested for willful criminal homicide who were over the age of 16, 1,388, or 1.7%, received the death sentence, while 5 of the 1,861, or 0.3%, of those under 16 who were arrested for willful criminal homicide received the death penalty.

40. That the task of interpreting the great, sweeping clauses of the Constitution ultimately falls to us has been for some time an accepted principle of American jurisprudence. See Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is"). With the Eighth Amendment, whose broad, vague terms do not yield to a mechanical parsing, the method is no different. See, e.g., Furman v. Georgia, 408 U.S. at 268-269 (BRENNAN, J., concurring); Coker v. Georgia, 433 U.S. at 598 ("We have the abiding conviction" that the death penalty is an excessive penalty for rape).

41.

[T]he conception of criminal responsibility with which the Juvenile Court operates also provides supporting rationale for its role in crime prevention. The basic philosophy concerning this is that criminal responsibility is absent in the case of misbehaving children. . . . But, what does it mean to say that a child has no criminal responsibility? . . . One thing about this does seem clearly implied, . . . and that is an absence of the basis for adult criminal accountability -- the exercise of an unfettered free will.

S. Fox, The Juvenile Court: Its Context, Problems and Opportunities 11-12 (1967) (publication of the President's Commission on Law Enforcement and Administration of Justice).

42. A report on a professional evaluation of 14 juveniles condemned to death in the United States, which was accepted for presentation to the American Academy of Child and Adolescent Psychiatry, concluded:

Adolescence is well recognized as a time of great physiological and psychological stress. Our data indicate that, above and beyond these maturational stresses, homicidal adolescents must cope with brain dysfunction, cognitive limitations, and severe psychopathology. Moreover, they must function in families that are not merely nonsupportive, but also violent and brutally abusive. These findings raise questions about the American tradition of considering adolescents to be as responsible as adults for their offenses, and of sentencing them to death.

Lewis, Pincus, Bard, Richardson, Prichep, Feldman, & Yeager, Neuropsychiatric, Pyschoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States 11 (1987).

43. See n. 23, supra; see also, e.g., E. Erikson, Childhood and Society 261-263 (1985) ("In their search for a new sense of continuity and sameness, adolescents have to refight many of the battles of earlier years, even though, to do so, they must artificially appoint perfectly well-meaning people to play the roles of adversaries"); E. Erikson, Identity: Youth and Crisis 128-135 (1968) (discussing adolescence as a period of "identity confusion," during which youths are "preoccupied with what they appear to be in the eyes of others, as compared with what they feel they are"); Gordon, The Tattered Cloak of Immortality, in Adolescence and Death 16, 27 (C. Corr & J. McNeil eds.1986) ("Risk-taking with body safety is common in the adolescent years, though sky diving, car racing, excessive use of drugs and alcoholic beverages, and other similar activities may not be directly perceived as a kind of flirting with death. In fact, in many ways, this is counterphobic behavior -- a challenge to death wherein each survival of risk is a victory over death"); Kastenbaum, Time and Death in Adolescence, in The Meaning of Death 99, 104 (H. Feifel ed.1959) ("The adolescent lives in an intense present; ‘now' is so real to him that past and future seem pallid by comparison. Everything that is important and valuable in life lies either in the immediate life situation or in the rather close future"); Kohlberg, The Development of Children's Orientations Toward a Moral Order, 6 Vita Humana 11, 30 (1963) (studies reveal that "large groups of moral concepts and ways of thought only attain meaning at successively advanced ages, and require the extensive background of social experience and cognitive growth represented by the age factor"); Miller, Adolescent Suicide: Etiology and Treatment, 9 Adolescent Psychiatry 327, 329 (S. Feinstein, J. Looney, A. Schwartzberg, & A. Sorosky eds.1981) (many adolescents possess a "profound conviction of their own omnipotence and immortality. Thus, many adolescents may appear to be attempting suicide, but they do not really believe that death will occur"); Streib, supra, n. 36, at 3-20, 184-189 ("The difference that separates children from adults for most purposes of the law is children's immature, undeveloped ability to reason in an adult-like manner").

44. We have invalidated death sentences when this significant justification was absent. See Enmund v. Florida, 458 U.S. at 458 U.S. 800"]800-801 (death penalty for one who neither kills nor intends to kill "does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts"); 800-801 (death penalty for one who neither kills nor intends to kill "does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts"); Ford v. Wainwright, 477 U.S. 399 (1986) (unconstitutional to execute someone when he is insane, in large part because retributive value is so low).

45. Although we have held that a legislature may base a capital punishment scheme on the goal of deterrence, some Members of the Court have expressed doubts about whether fear of death actually deters crimes in certain instances. See Lockett v. Ohio, 438 U.S. 586, 624-628 (1978) (deterrence argument unavailable for one who neither kills nor intends to kill; "doubtful" that prospect of death penalty would deter "individuals from becoming involved in ventures in which death may unintentionally result") (WHITE, J., concurring in judgment); Spaziano v. Florida, 468 U.S. 447, 480 (1984) (because of invalidation of mandatory death penalty laws and additional procedural requirements to death penalty laws in which the jury's discretion must be carefully guided, deterrence rationale now rather weak support for capital punishment) (STEVENS, J., dissenting); Enmund v. Florida, 458 U.S. at 798-800 (unlikely that prospect of death penalty will deter one who neither kills nor intends to kill) (WHITE, J.), Furman v. Georgia, 408 U.S. at 301-302 (unverifiable that the death penalty deters more effectively than life imprisonment) (BRENNAN, J., concurring); id. at 345-355, and nn. 124-125 (deterrence rationale unsupported by the evidence) (MARSHALL, J., concurring).

46. See United States Department of Justice, Uniform Crime Reports, supra, n. 38 (80,233 of 82,094, or 97.7%).

47. See also Gregg v. Georgia, 428 U.S. 153, 183 (1976) ("[T]he sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering") (joint opinion of Stewart, Powell, and STEVENS, JJ.).

48. Given the Court's disposition of the principal issue, it is unnecessary to resolve the second question presented, namely, whether photographic evidence that a state court deems erroneously admitted, but harmless at the guilt phase, nevertheless violates a capital defendant's constitutional rights by virtue of its being considered at the penalty phase.

* Appendices assembled with the assistance of the Brief for the National Legal Aid and Defender Association, the National Association of Criminal Defense Lawyers, and the American Jewish Committee as Amici Curiae.
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